A Conceptual Basis for Developing Model State Water Codes

The crafting of model state water codes must proceed out of the recognition that there are two prevailing philosophies under which resources are allocated. These contrasting systems both claim advantages in achieving well-being goals of the general citizenry. Where resources are allocated and distributed with reliance on the market system, water codes draw heavily on provisions of property law. Where resources are allocated with reliance on the political system, water codes and institutional structures are based on that body of law referred to as police power. Police powers have been reserved to the states for protecting health, safety, morals, and for promoting the general welfare. Government plays a more prominent role in this mode of resource allocation. Model state water codes must be adaptable to the preferred philosophic basis a state chooses to employ in the allocation of water resources. Within the above conceptual framework, it is necessary to identify key principles/objectives around which workable code elements are to be fashioned. This provides an organized way of contrasting, comparing, or categorizing these key principles, both as they relate to a philosophic basis for resource allocations, and as points of reference by which existing legal structures may be analyzed. Since present state water laws generally adhere to one or the other of two basic doctrines of water law, elements of these doctrines need to be compared in a meaningful way. Comparisons/contrasts with respect to certain key elements (i.e., eligibility to own, nature of ownership, adjudication process, liability, priority-supremacy, changes in use-transfer, etc.) will allow assessment of adaptability to basic allocation modes and also to the elements that will ultimately comprise the model state water code(s).